California Beach Considers Posting DUIs to Facebook

Facebook and other social media sites are playing a much larger role in the way that lawyers and lawmakers publicize information. Now, according to an article in the LA Times, officials in Huntington Beach, California, have sparked a new debate surrounding DUI information and the social media giant.
Officials in Huntington Beach are considering posting the names of suspected drunk drivers on the city’s Facebook page.
This potential tactic of publicly putting those arrested for DUI to shame by spreading their names online would be one part of a broader campaign to discourage drunk driving in the community, according to Lt. Russell Reinhart of the Huntington Police Department.
The idea came up in a City Council meeting, when Councilman Devin Dwyer put the idea on the table for police officials to consider. He posed the idea as a response to the local newspaper’s lapsed practice of publishing the names of those facing DUI charges.
“I didn’t think public shaming for driving under the influence was such a bad idea,” Dwyer told the LA Times. “I would use any tool necessary to bring down the numbers of drunk drivers.”
This isn’t the first time that a police force has had the idea, and it’s part of an aggressively anti-DUI campaign.
Other parts of the campaign include committing more police officers to focusing their attention on drunk driving arrests, and sending written notices to drinking holes and bars when someone is arrested who was patronizing the establishment.
Huntington Beach is known for its alcohol-related incidents, and what the LA Times calls “a sudsy reputation.” There were almost 1,700 DUI arrests in 2009, and 274 collisions that were attributed to alcohol impairment. These figures put it in the top tier for cities around the same size in California in terms of drunk driving and alcohol-related crashes.
A report from the city referred to the situation as “a significant DUI problem in Huntington Beach.”
Understandable, then, that officials would be willing to toss around the idea of a more direct way to get drunk driving suspects into the public eye, in hopes of deterring others from deciding to drink and drive.
Publicizing the information isn’t necessarily scandalous, as it is already public information. “Anybody could go to the counter, get it and put it on their own web page,” said Lt. Reinhart.
These won’t be the first efforts made. In similar attempts to curb the combination of booze and driving, police banned beer pong and other alcohol-related games at bars in the city’s downtown area.
The City’s attorney will review the Facebook proposal, to make sure there are no legal problems with it.

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Another Vigilant “DUI SuperCop”

I’ve posted repeatedly in the past about so-called "DUI Super Cops".  These are officers who rack up record numbers of drunk driving arrests — and are rewarded with MADD awards, departmental awards, promotions and astronomical overtime pay for court testimony. See, for example, Super Cops…and Super Cons, How To Be a DUI Super Cop, Another DUI Super Cop and The Latest DUI Super Cop.

Cop Arrests Biker With Cerebral Palsy for DUI

Salt Lake City, UT.  Nov. 9 – A Utah man who suffers from cerebral palsy, epilepsy and other disabilities was stopped while riding a motorized bicycle and charged with DUI after admitting he takes medication. 

As CBS Affiliate KUTV correspondent Chris Jones reports, Mike Tilt was pulled over by Utah Highway Patrol Trooper Lisa Steed on October 28 and asked to take a field sobriety test. 

Tilt, whose left leg is shorter than his right, told the officer that he would likely fail the test (which requires him to put one foot in front of the other), and he did. Tilt told Steed he did not have a driver’s license – he’d given it up 15 years before due to his seizures. 

After asking Tilt if he took medication for his epilepsy, she handcuffed him. 

According to Tilt, when he asked if he were being arrested, Steed replied, "Yeah, for DUI." 

Ironically, Tilt had forgotten to take his medication that night.

In defending the trooper’s actions, Utah Highway Patrol told KUTV that many people drive under the influence of prescription medications. 

They also praised Steed, who was named Trooper of the Year in 2007 for her arrests of drivers suspected of being under the influence. Over the past eight she has made nearly 800 DUI arrests, roughly half that in 2009 alone…

Tilt’s daughter, Courtney Tilt, told Jones, "If she’s proud of taking in an epileptic patient for a DUI, I don’t know what to think of her and her character." 

But further investigation by KUTV found cases where Steed was chastised by judges for allegedly disregarding UHP procedures, in one instance calling her actions "especially troubling." Another judge said she "lacks credibility." 

In some instances (though not in Tilt’s case) Steed conducted field sobriety tests out of view of her police car’s dashboard camera, counter to UHP policy. 

Defense attorney Glen Neeley, who has represented several people stopped by Steed, said to Jones that Steed’s goal is to pull over as many people as possible with the goal of making DUI arrests. 

After KUTV began looking into Steed’s record, UHP contacted the station, telling them they’d started their own inquiry of the trooper’s actions. 

"Was it consistent with what we’re trying to do with our overall perspective of DUI enforcement and review of it? No, it wasn’t," Capt. Mike Rapich told the station of the Tilt case. "This individual is not to be prosecuted for DUI." 

So Tilt is off the hook – but so is Steed. UHP stands behind Steed’s other DUI arrests, saying they "conform to prescribed procedure and the law." 

Whatever happened to ethics, fairness and plain common sense in drunk driving cases? 

View the original article here

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New Police Tactic

In today’s news, the latest insanity from the front lines….

Huntington Beach Might Post DUI Arrests on Facebook

Huntington Beach, CA.  Nov. 18 – Huntington Beach is considering a new tactic in its crusade against drunk driving: public shaming on Facebook.

The city’s Police Department is looking into posting the names of suspected drunk drivers on Facebook, said Lt. Russell Reinhart…

Reinhart said the Police Department began looking for a new way to publicize drunk-driving arrests after the Huntington Beach Independent, a community newspaper published by The Times, stopped running listings of the arrests.

Note:  the police are destroying people’s reputations — based upon an arrest, not a conviction.  There is nothing in the plans for retractions when those arrested are acquitted or have their cases dismissed.  

Note #2: Huntington Beach is not some quirky little town, but a metropolitan city of over 200,000 in Orange County, California – about 10 miles from my law offices.

View the original article here

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MADD Lobbying for Breathalyzers as Standard Equipment in All Future Cars

In the wake of their recent success in requiring mandatory ignition interlock devices (IIDs) in the cars of drivers who have been convicted of drunk driving, Mothers Against Drunk Driving has been planning the next push: requiring IIDs in all
cars. In other words, no car could be sold in the U.S. without devices which would require you to pass a breath test every time you wanted to start the vehicle.  See All U.S. Cars To Have Ignition Interlock Devices?

I’ve posted in the past about how such devices are, at best, inaccurate and problematic. See, for example, Will Ignition Interlock Devices End Drunk Driving?  These are not the expensive, constantly-calibrated high-tech machines used in police stations, but rather assembly-line equipment made by car manufacturers, subject to endless sources of false readings and failures — which can, ironically, cause accidents.  See Ignition Interlock Devices: Dangerous But Profitable.
And I’ve documented that 3 of MADD’s 6 biggest corporate contributors are auto manufacturers who stand to make big profits from mandatory IIDs (another of the 6 major contributors is MADD’s telemarketing company).  See The Truth About Ignition Interlock Devices..
MADD is now finally making their push for federal legislation.  And based upon past successes with legislators unwilling to oppose MADD, the their chances are good.  In today’s news:

MADD Lobbying for Device to Keep Cars From Starting in Driver is Intoxicated

Dallas, TX.  Nov. 15 — …Now in its 30th year, MADD has a new plan and wants to end drunken driving for good. The nonprofit is pushing for the development of alcohol-sensing technology that prevents cars from starting if the driver is intoxicated.
Some say the group is going too far. The $60 million proposed federal legislation to develop the technology has led to the latest round of charges that the group is "neo-prohibitionist."…
And the American Beverage Institute, a restaurant industry group, criticized MADD’s fund-raising techniques this year. MADD relies heavily on expensive telemarketing, which led to poor marks from two charity watchdog groups…
MADD is lobbying Congress to pass an amendment to the Motor Vehicle Safety Act to provide the $60 million needed over five years for the sensor technology. Cars would not start if the driver has a blood alcohol level above the legal limit, at .08 or higher…
MADD’s top critic, the American Beverage Institute in Washington, D.C., says the group is now going after social drinkers.
"They are no longer a mainstream organization," said Sarah Longwell, the institute’s managing director. "Many of their policies are extremely fringe at this point."
The institute fears the alcohol sensing technology will be used against people just having a drink or two.

"When they talk about alcohol sensing technologies, ultimately what it does, it eliminates people’s ability to drink anything before driving," Longwell said. "It’s not about drunk driving anymore, it’s about trying to demonize any drinking prior to driving."…

Would you trust Detroit to mass-manufacture sophisticated breathalyzer technology for your dashboard?

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“I Don’t Need No Stinkin’ Convictions!”

  What’s wrong with this picture…besides the macho "top gun" stuff?

Local Officers Honored as "Top Guns" for DUI Arrests

York, PA.  Oct. 20 – Local law enforcement officers will be honored for taking more than 380 impaired drivers off York roads last year.

The Pennsylvania Driving Under the Influence Association will honor 48 officers statewide with 2010 DUI Top Gun Awards…

"We are taking this opportunity to honor those officers in Pennsylvania who were leaders during 2009 in either making DUI arrests or conducting drug influence evaluations on impaired drivers," C. Stephen Erni, executive director of the Pennsylvania DUI Association, said…

So….why are cops being given awards for making arrests — rather than for arrests resulting in convictions?  (For a discussion of the problem, see my earlier post Officers Rewarded for Arrests – Not Convictions.)

View the original article here

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Should We Punish Drivers Who Pull Over To Sleep It Off?

I continue to receive queries concerning a news article I commented on a long ago, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about that Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might.The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.

View the original article here

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Former Yankee Jim Leyritz on Trial for DUI Manslaughter

Jim Leyritz once played in the most famous ballparks alongside baseball stars like Derek Jeter and Roger Clemens, but now he is on trial for DUI manslaughter after a tragic night left a mother dead.

The Florida DUI trial has most recently featured the testimony of a witness who testified that Leyritz ran his Ford Expedition through a red light and hit the SUV driven by Fredia Ann Veitch, killing her.

The witness, a bouncer at a bar in Ft. Lauderdale, claimed that Leyritz appeared to be trying to make it through the intersection before a yellow light turned red. He didn’t make it, said the accident witness, as reported by the New York Daily News.

The accident took place in December of 2007, at just after 3 in the morning. Henry also said that Veitch had the green light as she entered the intersection. “She didn’t have to stop because it was green,” he testified.

Henry was cross-examined regarding the timing of his witnessing of the accident, and he did offer that he looked up to see the incident only after he heard brakes screeching nearby.

Some evidence in the case, namely that there were no skid marks before the intersection, could shed some doubt on the timing claimed by Henry. There were screech marks on the road after the traffic lights, which may suggest that Henry did not see what the state of the traffic lights was at the time that he started viewing the incident.

According to the prosecution, Jim Leyritz had been out on the town, taking shots of vodka and tequila to celebrate his birthday when he took the wheel. His blood alcohol content was measured at .14 percent, which is almost double the legal BAC limit of .08.

Leyritz has pleaded not guilty to the DUI charge and to vehicular homicide. If he is convicted of the crime, he could face 15 years in prison.

In addition to Henry’s testimony, the prosecution has said that another witness, a passenger in Leyritz’s vehicle, would also testify that Leyritz ran the red light.

Other evidence in the trial includes testimony from witnesses who say that Leyritz did not appear intoxicated following the accident. One of those witnesses is a police detective.

Prosecutors will counter those accounts by asking jurors to look at police video of Leyritz’s field sobriety test.

“What you will see is a man who is being given instructions and can’t follow those instructions, even though he is not falling-down drunk,” prosecutor Stefanie Newman told the jury.

Leyritz had previously settled a civil suit with the family of the victim, though he did not admit any liability.

View the original article here

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Videotaped Falsification of Breath Test Documents

In my last post I presented a videotape from breathalyzer expert Stephen F. Daniels showing the falsification of monthly breath machine reports in the Hillsborough County (Florida) Sheriff’s Office.  

The following is another videotape from Mr. Daniels, depicting officers falsely signing a document verifying compliance with breath test regulations before the test of an arrested suspect.  The regulation involves the requirement that the suspect must be kept under constant observation for a period of at least 20 minutes before the test is administered.  This is to ensure that the suspect has not burped, belched or regurgitated — which can tremendously increase a breath test reading; it takes up to 20 minutes for the "mouth alcohol" to be dissipated.

The videotape on YouTube:  Falsify Notary and Violate the 20-Minute Observation Period – Officer Cooper and Deputy Glover.   

As the video clearly shows, none of the officers signing the document (which was blank) under penalty of perjury observed the suspect for more than a few seconds, if at all.  This was later confirmed by a Florida court, which stated in its ruling in favor of the accused: "The lack of candid disclosure concerns this court.  The affirmation of Officer Cooper (DD9) of constant observation of the Petitioner from 5:58 am until 6:17 am is clearly not true…Officer Cooper failed to maintain observation of Petitioner and falsely states that he observed her when he did not."  

It should be understood that what happened on this videotape is not an isolated instance.  Cutting corners and falsifying documents in drunk driving cases is common in police agencies across the country.

View the original article here

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Oklahoma State Football Player Apologizes Following DUI Arrest

Justin Blackmon, a sophomore receiver on the Oklahoma State football team, was arrested under suspicion of DUI this week, after he was pulled over on the interstate around Dallas-Ft. Worth.

Blackmon announced an apology following the announcement of his DUI arrest. He apologized to his family and friends, and to the school, according to NewsOK.

“I made a mistake, and I take full responsibility for it. I look forward to redeeming myself. This isn’t who I am.”

Blackmon has been suspended for a game by head football Mike Gundy, the match-up between Oklahoma State and Kansas State.

“In our opinion, what he did deserves a suspension for this game,” said Gundy. “It was very easy for us. That’s a decision he made, and he has to suffer the consequences.”

Blackmon was stopped after being clocked driving 92 miles per hour in a 60 mile per hour zone on Interstate 35. He was subsequently arrested for suspicion of DUI.

Blackmon didn’t have to speak to the press so soon after his arrest. However, he appeared at a press conference less than 48 hours. When asked why, he told the press, “to prove I’m not that guy and own up to my mistakes. I did it, and I should be punished for it.”

“6:51,” replied Coach Gundy about when he heard about the DUI arrest, referring to how early in the morning he got the call. “Usually when I get a call that early in the morning it’s not good.” Gundy also said that Blackmon was “a caring person who made a mistake.”

Several other OSU football players were in the car with Blackmon, though no other students have been punished by the football program for anything that occurred that night.

Blackmon has been tagged for speeding in the past, once for driving 20 to 25 miles per hour over the limit, and another time for driving 93 in a 70 mile per hour zone.

The legal investigation is still under way, so Blackmon didn’t answer any specific questions about the case.

According to Texas DUI law, a police officer doesn’t have to place a minor into custody for the Class C misdemeanor DUI.

View the original article here

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Coming To You Soon: Limitless Police Stops and Breath Tests

How would you like to be stopped by the police anytime, anywhere, and tested on a breathalyzer — for no reason except that the cop felt like it? 

MADD Would Like to See Random Breath Tests for Drivers

Toronto, Canada.  Nov. 2 –  If Mothers Against Drunk Driving CEO Andrew Murie has his way, drivers across Canada could be forced to take a breathalyzer test anywhere, anytime — whether police suspect drunk driving or not.

And Murie may get it…

Murie has some big backers in the random breath testing debate.

Federal Justice Minister Rob Nicholson has endorsed such a change in the law, echoing a June 2009 recommendation from the Standing Committee on Justice and Human Rights that Ottawa amend the criminal code to allow police across Canada to conduct random breath tests.

RBT would replace Canada’s current, 40-year-old way of doing things, where police can demand a breath test only if they have reason to suspect a driver is too drunk to drive.

Ottawa said it would talk to the provinces first, then consider the changes…

But RBT is a slippery slope for a “free and democratic country” such as Canada, said Nathalie Des Rosiers of the Canadian Civil Liberties Association.

Increasing police power to that point, she said, would send the truth north strong and free toward becoming a police state.

“It’s about giving the power to the police to arrest someone anywhere, anytime and subject them to a criminal investigation where they have to comply, even though there is no reasonable grounds that they’ve done anything wrong,” said Des Rosier.  

This is a logical progression in the long series of drunk driving laws and court decisions which have steadily eroded our Constitutional rights — here and, apparently, in Canada. Look for MADD USA to make random stops and breath tests their next legislative goal.

View the original article here

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Biker With Cerebral Palsy Arrested for DUI in Utah

In Utah, a highway patrol officer arrested a man with epilepsy and cerebral palsy for DUI, after pulling him over as he rode a motorized bicycle, according to an article in CBS News.

Mike Tilt’s disabilities would make it difficult for him to complete a field sobriety test under any circumstances, and he warned the officer who stopped him of that fact.

Nevertheless, he was asked to take the field sobriety test, including walking with one foot in front of the other. As he had predicted, he failed the test.

And when Tilt told the trooper, Utah Highway Patrol Trooper Lisa Steed, that he takes medication for his ailments, he was arrested for DUI.

The Utah Highway Patrol later called CBS News to say that the arrest of Tilt for DUI was not consistent with the goals of patrol and their DUI prevention efforts, and Tilt was not charged with DUI.

The trooper who made the stop, however, has faced increased scrutiny from the media. According to those investigations, Steed has been chastised in court over several DUI cases. A judge in one case scolded her for ignoring standard Utah Highway Patrol procedures, and he called her actions “especially troubling,” and another judge said that she “lacks credibility,” according to KUTV.

Examples of her disregarding Utah Highway Patrol procedure includes cases in which Steed has conducted field sobriety tests out of view of the cameras installed on patrol cars. This was not the case in Tilt’s arrest, however.

According to a DUI defense attorney who has defended clients whom Steed has pulled over in the past, Steed is a goal-oriented trooper who wants to pull over as many people as possible to make DUI arrests.

Many came to Steed’s support, as well, including the Utah Highway Patrol, which clarified that many people are guilty of DUI when driving with prescription medication in their systems, and that Steed has a long record of success in making DUI stops and arrests.

Steed was also Trooper of the Year in 2007. She has made around 800 DUI arrests in the last eight years.

The Utah Highway Patrol is currently inquiring into Steed’s actions, though they stand behind her arrest record.

View the original article here

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Videotaped Manipulation of Breathalyzer Inspections?

I have written ad nauseum about the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work (And Why They Don’t).

Sources of inaccuracy occur, among other reasons, because of inherent design defects, defective and inaccurate software, physiological variability of subjects tested, improper administration by police, and unreliable maintenance and calibration.  

The latter is a continuing problem in police agencies across the country — including the tendency to falsify maintenance and calibration records.  This is done to validate questionable test results — to permit admissibility as evidence in court and to support  public and judicial confidence in the machines.  These behind-the-scenes procedures are, of course, difficult to detect.

One of my readers, Stephen F. Daniels of Treasure Island, Florida, has recently contacted me with fascinating videotape of what appears to be one of those procedures.  

Mr. Daniels holds a certificate from the Florida Department of Law Enforcement  as a "Breath Test Operator and Agency Inspector".  He informs me that the videotape — which he has posted on YouTube — shows a police agency inspector of the Hillsborough County Sheriff Office in Tampa "intentional falsifying the failing monthly inspection reports and making up false excuses which allowed her to retest and keep the failing Intoxilyzer on-line". 

The full 14-minute videotape can be viewed at:  Fake O-Ring Excuse by Hillsborough County Sheriff Office Alcohol Inspector.     

For those who may question this, consider the following Tampa TV news report:

Misuse of DUI Machines at Hillsborough Jail?

When a law enforcement officer arrests someone for DUI and takes that person to the Hillsborough Orient Road Jail, we have seen there can be problems.

Wanda Sullivan, who was arrested for DUI, found that out when she was pulled from a chair and dragged across the floor. However, our 3-month investigation also shows there are problems with the way law enforcement authorities have used the breath testing machine, the Intoxilyzer 8000.

We ran a control test with DUI consultant Stephen Daniels, using the Intoxilyzer 8000. The result of the test had his blood alcohol at .000.

Then we had Daniels eat some Wonder Bread, and he blew a .033. Although still under the legal limit, Daniels was registering alcohol after only eating bread…

This isn’t the first time the accuracy of the breath testing machines and the way the Florida Department of Law Enforcement monitors them has been called in to question. Within the past year, an inspector had to be dismissed after she was caught telling other police agencies how to get around the guidelines if the machine failed the state-mandated test.

"We found that they actually fudge on the machines," says defense attorney Richard Hersch.

We showed Hersch an inspection test from Hillsborough County on July 19 2007. The inspector logs in at 8:58 and then conducts that test a 9:06. The inspector then says the inspection was not completed, because of a power failure.

So the inspector performs another test at 9:41, and then logs back in at 9:43. The FDLE says doing that is impossible; you can’t inspect a machine after a power failure without re-logging in first.

"By turning it off, all of the failed inspection data didn’t get written to the memory. It disappeared," Hersch explains.

That means a machine that could be out of tolerance could be used as evidence to convict you of a DUI, if you are pulled over and possibly under the legal limit.

For a YouTube videotape showing Mr. Daniels taking another breath test after eating a slice of bread, see Wonder Bread Blow With a 0.405% BrAC (over half of the legal limit).  

View the original article here

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DUI Trial for Driver in MLB Player’s Death Continues

The trial of DUI defendant Andrew Gallo is now focused recently on whether Gallo knew that driving drunk was a dangerous decision just before he hit and killed Nick Adenhart, a pitcher for Major League Baseballs’ Anaheim Angels, and two other people.

The prosecution in the case, in its closing statements, made the claim that Gallo knew the dangers of what he was doing, and that he cared only about himself, according to an article in the Associated Press.

Deputy District Attorney Susan Price told the jury in the California DUI case that Gallo “made the decision to get intoxicated beyond the point of any reason.”

The defense argued that Gallo did not act out of malice, and did not mean to kill anybody. According to the defense, Gallo thought that his stepbrother would be the designated driver, and only drove after his stepbrother became intoxicated as well.

Gallo was in a state of blackout brought on by excessive drinking.

Price replied by saying, “He doesn’t get rewarded for three free murders because he chose to get too drunk. The car keys weren’t forced upon him. They weren’t glued to his hand.”

The prosecution allege that Gallo and his stepbrother drank beer and took shots at three different bars over the course of several hours before he ran a red light at 65 miles per hour and struck the car in which Adenhart was a passenger.

Adenhart was killed, as were his friends Courtney Stewart and Henry Pearson. Their car was allegedly T-boned by Gallo’s car. Stewart and Pearson were killed instantly, while Adenhart died while in surgery. Earlier that evening Adenhart had pitched his first game of the season for the Anaheim Angels.

Jon Wilhite was the fourth passenger in the car and the only survivor. He has endured a long rehabilitation after skull and spine injuries.

Gallo has pleaded not guilty to three counts of second degree murder. According to the prosecution, his blood alcohol content was three time over the legal limit for operating a motor vehicle.

If he is convicted of the charges, which include others for fleeing the scene and DUI-related charges, he faces 50 years in jail.

View the original article here

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Videotaped Manipulation of Breathalyzer Inspections?

I have written ad nauseum about the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work (And Why They Don’t).

Sources of inaccuracy occur, among other reasons, because of inherent design defects, defective and inaccurate software, physiological variability of subjects tested, improper administration by police, and unreliable maintenance and calibration.

The latter is a continuing problem in police agencies across the country — including the tendency to falsify maintenance and calibration records.  This is done to validate questionable test results — to permit admissibility as evidence in court and to support  public and judicial confidence in the machines.  These behind-the-scenes procedures are, of course, difficult to detect.
One of my readers, Stephen F. Daniels of Treasure Island, Florida, has recently contacted me with fascinating videotape of what appears to be one of those procedures.
Mr. Daniels holds a certificate from the Florida Department of Law Enforcement  as a "Breath Test Operator and Agency Inspector".  He informs me that the videotape — which he has posted on YouTube — shows a police agency inspector of the Hillsborough County Sheriff Office in Tampa "intentional falsifying the failing monthly inspection reports and making up false excuses which allowed her to retest and keep the failing Intoxilyzer on-line".
The full 14-minute videotape can be viewed at:  Fake O-Ring Excuse by Hillsborough County Sheriff Office Alcohol Inspector.    

Misuse of DUI Machines at Hillsborough Jail?

When a law enforcement officer arrests someone for DUI and takes that person to the Hillsborough Orient Road Jail, we have seen there can be problems.
Wanda Sullivan, who was arrested for DUI, found that out when she was pulled from a chair and dragged across the floor. However, our 3-month investigation also shows there are problems with the way law enforcement authorities have used the breath testing machine, the Intoxilyzer 8000.
We ran a control test with DUI consultant Stephen Daniels, using the Intoxilyzer 8000. The result of the test had his blood alcohol at .000.

Intoxilyzer 8000 (in use)

Then we had Daniels eat some Wonder Bread, and he blew a .033. Although still under the legal limit, Daniels was registering alcohol after only eating bread…
This isn’t the first time the accuracy of the breath testing machines and the way the Florida Department of Law Enforcement monitors them has been called in to question. Within the past year, an inspector had to be dismissed after she was caught telling other police agencies how to get around the guidelines if the machine failed the state-mandated test.
"We found that they actually fudge on the machines," says defense attorney Richard Hersch.
We showed Hersch an inspection test from Hillsborough County on July 19 2007. The inspector logs in at 8:58 and then conducts that test a 9:06. The inspector then says the inspection was not completed, because of a power failure.
So the inspector performs another test at 9:41, and then logs back in at 9:43. The FDLE says doing that is impossible; you can’t inspect a machine after a power failure without re-logging in first.
"By turning it off, all of the failed inspection data didn’t get written to the memory. It disappeared," Hersch explains.
That means a machine that could be out of tolerance could be used as evidence to convict you of a DUI, if you are pulled over and possibly under the legal limit.

For a YouTube videotape showing Mr. Daniels taking another breath test after eating a slice of bread, see Wonder Bread Blow With a 0.405% BrAC (over half of the legal limit). 

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Another DUI with Baby on Board and A Man Faces 3 DUI Charges in One Night

This week’s DUI stories feature a poor parenting decision, and an active night for a man charged with 3 DUIs in a single evening of driving.

It is all too common in the world of DUI news to hear about a parent’s use of poor judgment. Not only do they allegedly drive drunk, but they do so with a child in the car with them.
In Fort Myers, Florida, Brittney Locke is charged with DUI and other crimes, after police say she was stopped on the interstate while driving under the influence, according to ABC 7.
According to police, Locke was stopped after witnesses called police, having witnessed an accident on the highway. The driver left the scene, witnesses said, and police found Locke parked along the side of the road near an exit, with metal sheared off the side of the car.
She also had an infant in the car with her, in a car seat.
Police noted that she appeared to have trouble keeping her eyes open, and said she didn’t know what she’d hit to cause the damage to her car. She failed a field sobriety test.
She claimed to be on the way to see the child’s father, to get money from him. She also told police she was exhausted, and that she had to be up early to visit an area methadone clinic as a part of addiction treatment.
Police allegedly found a Xanex tablet in the car, a prescription bottle of ibuprofen and a plastic straw that, according to ABC, “appeared to be coated with drug residue.”
A relative took control of the child. Locke is charged with DUI, DUI property damage for the guard rail she allegedly hit, child cruelty, drug possession and drug equipment possession.
According to KGMI in Whatcom County, Washington, a man is facing 3 DUI charges after a single night of activity.

Tommy Ryser allegedly wrecked his pickup truck on the road, where police found it at around 8 p.m. on a Monday night. Then, police received a call that another accident had been reported.
It was a red VW Golf that had crashed into a guardrail.
Who pulled up to that accident site but Ryser, driving a tow truck. He had a cut on his face, according to police, and was found to be intoxicated.
According to KGMI, Ryser was arrested for and charged with crashing both disabled vehicles, and with driving drunk to the crash sites, in order to tow them back home.

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“I Don’t Need No Stinkin’ Convictions!”

  What’s wrong with this picture…besides the macho "top gun" stuff?

Local Officers Honored as "Top Guns" for DUI Arrests

York, PA.  Oct. 20 – Local law enforcement officers will be honored for taking more than 380 impaired drivers off York roads last year.

The Pennsylvania Driving Under the Influence Association will honor 48 officers statewide with 2010 DUI Top Gun Awards…

"We are taking this opportunity to honor those officers in Pennsylvania who were leaders during 2009 in either making DUI arrests or conducting drug influence evaluations on impaired drivers," C. Stephen Erni, executive director of the Pennsylvania DUI Association, said…

So….why are cops being given awards for making arrests — rather than for arrests resulting in convictions?  (For a discussion of the problem, see my earlier post Officers Rewarded for Arrests – Not Convictions.)

View the original article here

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Florida Dealership Markets a ‘DUI scooter’

In Clearwater, Florida, a motor scooter dealership decided to implement an aggressive campaign to meet the needs of “specialized” market by offering what they call “DUI scooters.”

These “DUI scooters” are small, electric mopeds that are bright red and blue, with pedals, headlights and windshields. They don’t go more than 20 miles per hour, though, and they meet the federal description of a “low-speed electric bicycle,” according to an article in the St. Petersburg Times.

In other words, you don’t need a driver’s license to drive one, and those who have had their license suspended because of DUI may have another way to get around.

Doug Vitello and Gary Parr are the owners of Sunset Scooters. They were finding that they couldn’t quite meet the needs of their potential customers, so they did a little research into the DUI laws.

It turned out that the motorized scooter in question was an attractive option for those convicted of DUI, who had their driver’s license suspended and needed everyday transportation.

And while current Florida law may allow these scooters to be driven without a license, a driver could still face DUI charges if found to be driving one of these under the influence. DUI laws, afterall, apply to the operation of any vehicle, including scooters, boats, lawn mowers and more.

When Vitello and Parr learned this fact, they went searching for a scooter that was legal to drive without a license. They found one, made in China and distributed out of California. Then they put a sign in their window that said “DUI Scooters.”

When they sell a “DUI scooter” to a customer, Sunset Scooters provides customers with a copy of the law that says they are legal to drive without a license. They also recommend that customers laminate the law and carry it with them, to avoid misunderstandings with the police.

“At first we had some trouble with law enforcement basically not understanding what these were,” said Vitello. “Even some judges were completely mystified. But now they all seem to be on board.”

The so-called “DUI scooters,” made by X-treme Scooters and costing upwards of $2,000, look similar to regular motor scooters, if a little smaller, with narrower wheels and the pedals sticking out of the side.

The police in Clearwater were not so sure about the vehicle. Sgt. Tom Nestor told the St. Petersburg Times, “We’ll just say they’re under review for now.” The agency was, according to the article, “trying to determine exactly what these scooters are and how to handle them.”

Word of mouth has spurred the scooter sales. Sunset Scooters now sells around 10 per month. Parr and Vitello say that they came up with the “DUI scooter” term themselves.

View the original article here

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A Voice of Reason

I posted a few days ago about yet another example of MADD’s influence in pressuring legislators to pass ever-more Draconian laws:  proposed DUI laws in Manitoba giving police unlimited power to pull over any driver they wish and administer field sobriety tests – regardless of whether there are any indications of drunk driving.  The following is a newspaper staff editorial standing up to similar pressures from MADD in another province, British Columbia:

Liberties Infringed

Vancouver, BC.  Oct. 25 –Drunk driving is a scourge on society. It kills innocent people and maims others. But the B.C. government has taken stern measures to combat it, including the imposition of some of the toughest penalties in Canada.

That’s one reason we have strong reservations about the call by Mothers Against Drunk Driving for random testing that would allow police to pull citizens over for breathalyzer tests, even without suspicion a driver is impaired. This gives police too much power. And we have all seen what transpires when that’s allowed to happen.

Irish poet Brendan Behan may have overstated it when he said: "I have never seen a situation so dismal that a policeman couldn’t make it worse." But we don’t want a police state, and there should be reasonable limits on their authority. Let’s not further curb precious liberties.

If only the editorial staffs of our own newspapers had the courage to stand up to MADD…

View the original article here

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Should We Punish Drivers Who Pull Over To Sleep It Off?

I continue to receive queries concerning a news article I commented on a long ago, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about that Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might.The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.

View the original article here

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Kentucky DUI Case Put Breathalyzer Burps Under the Microscope

In a DUI case in Kentucky, a judge in the case acquitted a man suspected of DUI because of a burp.

According to the Courier-Journal, a judge found Bertrand Howlett not guilty of DUI because the judge had a personal recollection from his experience as a prosecutor of DUI cases years ago that a burp at the wrong time could skew the results of a Breathalyzer test.

Based on that recollection, Howlett was acquitted of the charge that stemmed from when police pulled him over after, according to officials, he was seen speeding and almost driving off the road. Police said he smelled like booze and that he failed a field sobriety test, and they charged him with DUI.

However, Howlett claimed that he had burped just before his blood alcohol content was tested back at the jail—a test in which he blew a 0.15. That burp, he contended, was enough to skew the results of the test. The judge in the case agreed. Police had not, in the judge’s mind, waited long enough after Howlett’s burp for the test to be accurate.

In testimony, Howlett said that the burp wasn’t a loud one, and that in fact no one may have been able to hear it. The machine used to measure his blood alcohol content stated in the manual that police should observe a suspect for 20 minutes before a test is given, in order to make sure that the only substance tested is air from the lungs.

If the test subject regurgitates, for example, police should wait 20 minutes before proceeding.

The DUI case in Kentucky was without a jury, so the judge was left to decide on the matter. He sided with the idea that the burp had skewed the test results, based on his time as a DUI prosecutor for six years while he was an assistant county attorney.

That decision has since moved to the Supreme Court of the state, not to appeal the DUI case decision, but to question whether a judge can admit as evidence a piece of his or her own knowledge. The county attorney’s office called the judge’s use of his own personal knowledge a “manifest injustice.”

Clearly Howlett wasn’t the only one left with a bad taste in his mouth.

View the original article here

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California City Council Candidate Cleared of DUI Checkpoint Misconduct

A DUI checkpoint was the scene of what some call a local politics power play, but the local government candidate in question was acquitted of criminal wrongdoing after interacting with police at the checkpoint.

Planning commissioner Jim Righeimer is a candidate for the City Council of Costa Mesa, California, in the upcoming elections. Righeimer was recently involved in an incident that came under fire, not for being under suspicion of DUI, but after he talked with police officers at a DUI checkpoint in a way that some saw as an abuse of power, according to an article in the Orange County Register.

After the incident – which was investigated by city officials – critics said that Righeimer attempted to misuse his power as planning commissioner to confront the police officers at the DUI checkpoint and to direct them to discontinue their activities.

City Attorney Kimberly Hall Barlow, however, recently concluded that Righeimer’s behavior, while it may have fulfilled some of the characterizations pushed forward by opponents of Righeimer, did not appear to show that he had abused the power granted to him by his position as planning commissioner.

The issue was not a matter of criminal wrongdoing, according to the City Attorney.

The determination came after an investigation and then a report, though the report was not released to the public. Several Councilman told the press that the report wasn’t released because it was exempt from public disclosure as part of an investigation.

The City Council voted on whether to release the record of the investigation to the public, and ultimately shot down the idea with a 3-2 vote against disclosing it.

At least one resident of the city, though, thinks it should be available to the media and the public.

“I have some really serious questions about why this information is being held back from the public,” said Costa Mesa local Regina Mundekis. She went on to say that, though the report is private because, as Councilmembers claim, it is in her words a personnel issue and a “public safety matter.”

Several weeks before the vote, however, the city released a recording of the incident in question at the DUI checkpoint. The recording was of Righeimer talking to the police at the DUI checkpoint in what the Orange County Register called “a taut but even voice, objecting to the timing of the checkpoint and asking who authorized it.”

In the past, Righeimer has criticized how much money the police and other public servants make. The president of the police association, Allen Rieckhof, said outright that Righeimer had abused his power with “thug-like tactics.”

View the original article here

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Deadliest Catch Star Jake Harris Arrested for DUI

Celebrity DUI

Seattle, Washington. Cornelia Marie deckhand, Jake Harris, 24, was arrested for DUI just nine days after the passing of his father Captain Phil Harris. These recent events has sent shockwaves through Discovery’s hit television series Deadliest Catch.

Last Thursday, Washington State troopers observed Harris driving a BMW 3 Series erratically. A vehicle matching the same description was called in earlier as a vehicle involved in a hit and run accident. Police are still investigating if Harris and his car are tied to the accident. During the traffic stop the trooper noted an odor of alcohol and Harris was requested to complete the field sobriety tests. The trooper alleged that Harris failed these tests and made an arrest for DUI.

During the DUI investigation Harris refused to provide a breath test sample and it was determined Harris was driving with a suspended drivers license. Harris spent the night in King County Jail and appeared in court the next day.

This is not the first time Harris has appeared in court on a criminal traffic matter. In the summer of 2006, I saw Harris appear in the Evergreen District Court in Snohomish County for a suspended drivers license charge. Young Jake needs to mature and realize that driving is a privilege and not a right in the State of Washington. The Department of Licensing requires all drivers follow very simple rules and in return we may utilize our driving privilege.

It is real easy Jake; renew your license, carry auto insurance, obey the traffic code and do not break the law while using a vehicle. Good luck with your DUI case.

View the original article here

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Goal: Eliminate Drinking…or Dangerous Driving?

Two stories in today’s newspapers say a lot about where the focus is for saving lives on the highways:

Random Tests Go Too Far

Winnipeg, Canada.  Oct. 18 — Police powers to check for impaired driving have encroached relentlessly upon civil liberties, such that innocent motorists are randomly, routinely pulled over and questioned, absent of cause. If an officer suspects any drinking has occurred, drivers must take a test. The penalties for refusing are equal to failing the test...

Now the Harper government wants to eliminate the need for any suspicion of drinking, allowing police to randomly demand a roadside test.

Advocacy group Mothers Against Drunk Driving is celebrating, saying this should make the glass of wine with dinner a thing of the past…

MADD, however, has been strangely silent about the proven greater dangers to human life of talking or texting on cell phones while driving.

Texting and Driving a Costly Business Risk

Miami, FL.  Oct 18 — Cellphones and driving don’t mix.

According to the National Safety Council, an estimated 200,000 crashes a year are caused by drivers who are texting. And that doesn’t include the near-misses. Added to that, a recent Car & Driver Magazine study found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers...

Perhaps Candy Lightner, the founder and first president of MADD, was right when she quit the organization, claiming that it its focus had shifted from saving lives to prohibition. 

View the original article here

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What Happens at a DUI Arraignment Hearing?

In this post we'll talk about the exact case relevant to Washington state. However, it could be applied to other states as well.

The arraignment hearing generally is the first time a defendant appears in front of a criminal court judge. In most jurisdictions a prosecutor will be present representing the rights and interests of the government. In Washington State the defendant’s presence is REQUIRED for a DUI arraignment hearing. Most criminal courts in Washington State will have an on-call public defender present to assist defendants that appear without an attorney. Why would cities and counties extend such an expensive courtesy at the arraignment? Well it can be one of the most important hearings throughout the court process.

The court will cover three very important issues on the record: [1] notice; [2] conditions of release; and set a [3] future court date.
Notice – The judge will read the formal criminal complaint filed by the prosecution. The complaint will inform the defendant of the criminal charge against them and the alleged date of the criminal conduct. When the judge has finished reading the complaint they will typically ask the defendant, “Do you understand the complaint?” and “How do you plead?” The only ACCEPTABLE responses are, “Yes, I understand and I plead not guilty.”

This is NOT an opportunity for the defendant to make statements about the arrest. It is NOT an opportunity for the defendant to provide a defense or an excuse for their actions. Anything a defendant says at the arraignment is being recorded and can be used against them at a later hearing. Defendants that have an attorney present usually say nothing and let their attorney respond. Defendants that do not have an attorney tend to be the ones that speak up to their own detriment. I have heard some people claim, “I might have had too many drinks but I was not drunk!” Guess what? DUI is not a drunk driving crime. DUI is driving under the influence, so consuming “too many drinks” can be a damning statement.

Illustration of a DUI Arraignment Hearing

Conditions of Release – After the judge has accepted the defendant’s plea of not guilty, the judge must determine whether or not to impose bail. If a defendant cannot post bail, then they will sit in jail throughout the duration of their criminal case. A DUI case can take up to 30 to 180 days to conclude. Judges can also impose lifestyle restrictions while the case is pending. For example, a judge might require a defendant to attend AA meetings, install an Ignition Interlock Device in their car and might require no consumption of alcohol.
The judge will determine bail by evaluating if you are a danger to the community and if you are a flight risk. Assessing a defendant’s danger level is determined by reviewing the alleged facts of the current case and the defendant’s past criminal activity. Individuals with criminal history can expect some level of bail to be imposed. The judge will also review the facts of the case, so if the defendant caused injury, property damage and/or had a high breath test reading bail might be imposed. Bail can range from a few hundred dollars to tens of thousands. It is imperative you have an attorney present at the DUI arraignment if you have past criminal convictions or arrests.
Even if it is your first offense I strongly recommend you have an experienced DUI attorney present.

Future Court Date Notice – The last thing that should occur at the DUI arraignment is the scheduling of the next court date. A defendant must not leave the arraignment until they know when the court expects to see them again. Failure to attend a scheduled court hearing will result in an issued bench warrant for your arrest. So make sure you see the court clerk and do not leave the courthouse until you have a written document stating the date, time and location of your next hearing. The next hearing will be the DUI Pretrial hearing.
That is an explanation of a Washington State DUI arraignment. Make sure you have an experienced DUI attorney present to protect your interests and rights. Contact an experience Seattle DUI attorney for a free consultation.

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How Body Temperature Changes Breathalyzer Results

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect"). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results" and "The Effect of Anemia on Breath Tests").

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

You don’t have to be sick to have a higher body temperature. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this — and the effects on breath test results. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.

Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.

View the original article here

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New Jersey Cop Martin Abreu Going to Prison

DUI News

Martin Abreu, 26, was a Jersey City police officer. Now he is a convict and prison resident. One year ago Abreu was traveling on West Street when he drove his vehicle into pedestrians Marilyn Feng, 26, and Dennis Loffredo, 26. Feng recently graduated from New York University Law School and was her parent’s only child. She died from her injuries. Her boyfriend, Loffredo, was injured but survived.

Abreu plead guilty to aggravated vehicular manslaughter because he was driving double the speed limit and he had a blood alcohol level of .124. The legal limit is 0.08. Abreu understood the horror he brought upon these two innocent individuals by stating, “There’s not a day that goes by that I wish I could trade my life for the victim’s. Everyday I live this. I’m going to live it for the rest of my life.”

However, his ignorant mother does not understand the dangers of drunk driving. She was quoted saying, “So my son went out and had a couple of drinks. He deserves to have a good time now and then.” Mrs. Abreu never leave your home and never open your mouth again. You lack the basic intelligence and decency to be part of a civilized society. Getting blitzed out of your mind, driving like a maniac and careening into pedestrians is not a “good time.” Alcohol impairs judgment and in your son’s case alcohol devastated his judgment.

No one has the right to a “good time” at the expense of human life.

View the original article here

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Videotaped Falsification of Breath Test Documents

In my last post I presented a videotape from breathalyzer expert Stephen F. Daniels showing the falsification of monthly breath machine reports in the Hillsborough County (Florida) Sheriff’s Office.  

The following is another videotape from Mr. Daniels, depicting officers falsely signing a document verifying compliance with breath test regulations before the test of an arrested suspect.  The regulation involves the requirement that the suspect must be kept under constant observation for a period of at least 20 minutes before the test is administered.  This is to ensure that the suspect has not burped, belched or regurgitated — which can tremendously increase a breath test reading; it takes up to 20 minutes for the "mouth alcohol" to be dissipated.

The videotape on YouTube:  Falsify Notary and Violate the 20-Minute Observation Period – Officer Cooper and Deputy Glover.   

As the video clearly shows, none of the officers signing the document (which was blank) under penalty of perjury observed the suspect for more than a few seconds, if at all.  This was later confirmed by a Florida court, which stated in its ruling in favor of the accused: "The lack of candid disclosure concerns this court.  The affirmation of Officer Cooper (DD9) of constant observation of the Petitioner from 5:58 am until 6:17 am is clearly not true…Officer Cooper failed to maintain observation of Petitioner and falsely states that he observed her when he did not."  

It should be understood that what happened on this videotape is not an isolated instance.  Cutting corners and falsifying documents in drunk driving cases is common in police agencies across the country.

View the original article here

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Is the Tide Turning?

 I’ve railed long and hard in the past about MADD’s neo-prohibitionist goals and its costs to our Constitution.  And it is no coincidence that the organizations’s founder, Candi Lightner, resigned years ago in disgust, saying that MADD had strayed from its original goal of saving lives and become prohibitionist.

Perhaps the public is beginning to awaken to the damage being done by this organization.  In the staff editorial of today’s Toronto Sun:

Have They Gone Madd?

Toronto, Canada.  Nov. 6 –  What was once a maternal grassroots movement to warn of the perils and tragedies associated with drinking and driving, Mothers Against Drunk Driving has sadly devolved into the WCTU.

It must be losing its grip.

The stridently puritanical Woman’s Christian Temperance Union, which brought its tea pot to Canada in 1874, believed even a sniff of demon alcohol caused unemployment, disease, prostitution, poverty and immorality.

And it wanted this "evil" not just restricted but abolished.

Is this MADD’s next mission?

The anti-drunk-driving crusaders, not satisfied with the successful RIDE campaigns they helped launch, are now demanding legislation that would allow police to stop anyone on the pretext of conducting random roadside breath tests (RBT) — anywhere and anytime.

That’s right, without cause, as in a police state — claiming their Ipsos Reid polling has 77% of Canadians support RBTs.

We find this impossible to believe.

The CEO of MADD Canada is Andrew Murie, the same exec who defended a Toronto-area police force last year that, to us, was sending a mixed pre-Christmas message by handing public-intoxication tickets to bar goers waiting on the sidewalk for their prearranged designated driver service.

Instead of congratulating the bar goers for not drinking and driving, and being responsible, however, Murie congratulated the police for busting them, and then laid blame on the bars for over-serving.

Mothers Against Drunk Driving is supposed to be against drunk driving, not the act of having a drink or even having one too many drinks.

But it now appears to be against drinking altogether — and this could put its charitable Project Red Ribbon campaign in peril.

The public can only take so much lecturing, hectoring and infringement of its civil liberties.

And we, for one, have had our fill.

MADD had best go back to its maternal grassroots before the public cashes them out as over-bearing, self-important zealots.

We loathe drinking and driving, and we say this without reservation. We are in the news biz, after all, and we daily see far too many tragedies across this country not to agree with MADD’s original cause.

But, unlike MADD, we have not gone temperance.

Nor do we advocate police statism.

View the original article here

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Robert Rizzo Pleads Guilty to DUI

Celebrity DUI

Huntington Beach, California. Robert Rizzo used to be the City Manager of Bell, California, but he left his post after some trouble. The monkey on his back was a DUI arrest and his “generous” salary. Bell is a small city surrounded by Los Angeles and as of the 2000 census had a population of 36,664. Apparently, the small community was not happy that Rizzo was making $800,000.00 a year. That seems to be quite excessive when you compare other politician salaries. For example, the current Governor of Washington State, Christine Gregoire, earns $166,891.00 annually. California Governor Arnold Schwarzenegger makes only $212,179.00 a year.

Not only was Rizzo grossly overpaid for his job, but he also left a black eye on the office when he was busted for DUI. Rizzo was reported for crashing his car into a mailbox. Officers tracked Rizzo to his home and conducted a thorough investigation. Rizzo was asked to participate in the field sobriety tests, but officers stopped the tests because Rizzo could not keep his balance. Then police collected some damning evidence; Rizzo produced a 0.28 breath test sample. California’s legal limit is 0.08.

Even though he blew well over the limit Rizzo was able to avoid jail from his DUI conviction. He will pay a fine, complete 10 days of community service and will need to complete a 9 month substance abuse program.

View the original article here

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Singer Faith Evans Arrested for DUI

Celebrity DUI

Marina Del Rey, California. Grammy winning singer Faith Evans was caught breaking the law again. Recently, Evans was stopped at a DUI checkpoint and was determined to be driving under the influence by the checkpoint police officers. Her car was impounded and she was released on bail.

In 2004, the widow of Notorious BIG, was busted for possession of marijuana and cocaine during a traffic stop. She completed a 13 week treatment program from that incident.

View the original article here

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A Voice of Reason

I posted a few days ago about yet another example of MADD’s influence in pressuring legislators to pass ever-more Draconian laws:  proposed DUI laws in Manitoba giving police unlimited power to pull over any driver they wish and administer field sobriety tests – regardless of whether there are any indications of drunk driving.  The following is a newspaper staff editorial standing up to similar pressures from MADD in another province, British Columbia:

Liberties Infringed

Vancouver, BC.  Oct. 25 –Drunk driving is a scourge on society. It kills innocent people and maims others. But the B.C. government has taken stern measures to combat it, including the imposition of some of the toughest penalties in Canada.

That’s one reason we have strong reservations about the call by Mothers Against Drunk Driving for random testing that would allow police to pull citizens over for breathalyzer tests, even without suspicion a driver is impaired. This gives police too much power. And we have all seen what transpires when that’s allowed to happen.

Irish poet Brendan Behan may have overstated it when he said: "I have never seen a situation so dismal that a policeman couldn’t make it worse." But we don’t want a police state, and there should be reasonable limits on their authority. Let’s not further curb precious liberties.

If only the editorial staffs of our own newspapers had the courage to stand up to MADD…

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Is the Tide Turning?

 I’ve railed long and hard in the past about MADD’s neo-prohibitionist goals and its costs to our Constitution.  And it is no coincidence that the organizations’s founder, Candi Lightner, resigned years ago in disgust, saying that MADD had strayed from its original goal of saving lives and become prohibitionist.

Perhaps the public is beginning to awaken to the damage being done by this organization.  In the staff editorial of today’s Toronto Sun:

Have They Gone Madd?

Toronto, Canada.  Nov. 6 –  What was once a maternal grassroots movement to warn of the perils and tragedies associated with drinking and driving, Mothers Against Drunk Driving has sadly devolved into the WCTU.

It must be losing its grip.

The stridently puritanical Woman’s Christian Temperance Union, which brought its tea pot to Canada in 1874, believed even a sniff of demon alcohol caused unemployment, disease, prostitution, poverty and immorality.

And it wanted this "evil" not just restricted but abolished.

Is this MADD’s next mission?

The anti-drunk-driving crusaders, not satisfied with the successful RIDE campaigns they helped launch, are now demanding legislation that would allow police to stop anyone on the pretext of conducting random roadside breath tests (RBT) — anywhere and anytime.

That’s right, without cause, as in a police state — claiming their Ipsos Reid polling has 77% of Canadians support RBTs.

We find this impossible to believe.

The CEO of MADD Canada is Andrew Murie, the same exec who defended a Toronto-area police force last year that, to us, was sending a mixed pre-Christmas message by handing public-intoxication tickets to bar goers waiting on the sidewalk for their prearranged designated driver service.

Instead of congratulating the bar goers for not drinking and driving, and being responsible, however, Murie congratulated the police for busting them, and then laid blame on the bars for over-serving.

Mothers Against Drunk Driving is supposed to be against drunk driving, not the act of having a drink or even having one too many drinks.

But it now appears to be against drinking altogether — and this could put its charitable Project Red Ribbon campaign in peril.

The public can only take so much lecturing, hectoring and infringement of its civil liberties.

And we, for one, have had our fill.

MADD had best go back to its maternal grassroots before the public cashes them out as over-bearing, self-important zealots.

We loathe drinking and driving, and we say this without reservation. We are in the news biz, after all, and we daily see far too many tragedies across this country not to agree with MADD’s original cause.

But, unlike MADD, we have not gone temperance.

Nor do we advocate police statism.

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New York City Police Officer Roniel Dilone Arrested

DUI News

One of New York’s finest finds himself on the wrong side of the law. Roniel Dilone, 26, is a four year veteran of the police force and his career is in sereious jeopardy.

Dilone struck a parked car early on January 21 while off-duty. He managed to escape the collision without any injuries, but his passenger was not so lucky. Dilone’s passenger fractured his leg and shoulder.

Dilone was arrested for drunk driving, vehicular assault and for refusing to submit to a breath test. The police department suspended Dilone without pay.

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Vote for Ed McKenna for Seattle Municipal Court Judge

Seattle DUI

Ed McKenna is the best candidate for Seattle Municipal Court judge. He has decades of trial experience working as a City of Seattle Assistant City Attorney. He has managed voluminous caseloads and interacted as a community liason. Ed will be fair and reasonable. As a former prosecutor that worked side by side with Ed and as a former defense attorney pitted against Ed I endorse his venture to become a Seattle Municipal Court judge.

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Cincinnati Bengals’ Rey Maualuga Avoids NFL Suspension

Athlete DUI
Cincinnati Bengals’ linebacker Rey Maualuga was convicted of drunk driving earlier this year. His conviction stemmed from a raucous January night in which he crashed into two parked cars while under the influence of alcohol. For his actions he recieved a 7 day suspended jail sentence, a 90 day drivers license suspension and some probation conditions.
It should be noted that NFL players also can receive a penalty from the NFL itself through the commissioner’s office. Maualuga dodged a bullet and so did the Bengals organization. Rodger Goodell, the NFL Commissioner, did not order a game suspension. Instead Maualuga will give up two gameday paychecks.

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Goal: Eliminate Drinking…or Dangerous Driving?

Two stories in today’s newspapers say a lot about where the focus is for saving lives on the highways:

Random Tests Go Too Far
Winnipeg, Canada.  Oct. 18 — Police powers to check for impaired driving have encroached relentlessly upon civil liberties, such that innocent motorists are randomly, routinely pulled over and questioned, absent of cause. If an officer suspects any drinking has occurred, drivers must take a test. The penalties for refusing are equal to failing the test...
Now the Harper government wants to eliminate the need for any suspicion of drinking, allowing police to randomly demand a roadside test.
Advocacy group Mothers Against Drunk Driving is celebrating, saying this should make the glass of wine with dinner a thing of the past…

MADD, however, has been strangely silent about the proven greater dangers to human life of talking or texting on cell phones while driving.
Texting and Driving a Costly Business Risk

Miami, FL.  Oct 18 — Cellphones and driving don’t mix.
According to the National Safety Council, an estimated 200,000 crashes a year are caused by drivers who are texting. And that doesn’t include the near-misses. Added to that, a recent Car & Driver Magazine study found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers...

Perhaps Candy Lightner, the founder and first president of MADD, was right when she quit the organization, claiming that it its focus had shifted from saving lives to prohibition.

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Seattle Attorney Anne Bremner Charged with DUI

Kenmore, Washington. Seattle area criminal defense attorney, Anne Bremner, was charged with DUI and her arraignment is scheduled for September 1, 2010. Bremner is widely known for representing police officers that fall on the wrong side of the law and she is somewhat of a celebrity. Bremner can often be seen on CNN, Fox News, and TruTV as a legal commentator.
She probably never expected to be a defendant herself, but on June 4 a King County Sheriff’s deputy arrested Bremner for drunk driving. The police officer observed Bremner driving on a flat tire. During contact the officer allegedly observed signs consistent with impairment. Bremner has countered that she was a victim of a hit-and-run driver, and the accident caused head or brain trauma which can explain her “impairment.” The officer processed her for DUI, and booked her into jail. That is a rough way to end a night especially on your birthday; Bremner turned 52 on June 4.
After a few months to regain her composure and mount a defense she is ready to begin the case. Bremner has a psychiatrist, Dr. Philip Lindsay, affirming she was involved in a high speed collision that resulted in a concussion. Dr. Lindsay suggests the officer rushed to judgment by concluding Bremner was impaired by an intoxicating substance. Clearly, Bremner intends to do battle with the prosecutor Sarah Roberts. This new bring it on attitude is much different than the cloak and dagger approach originally sought after when Bremner tried blocking disclosure of the arrest details.
I do not know Bremner but wish her luck. Winning a DUI case is very difficult for a defendant, but having the power of the media, celebrity status and lots of disposable income certainly increases the chances of a favorable outcome.

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How Body Temperature Changes Breathalyzer Results

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect"). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results" and "The Effect of Anemia on Breath Tests").

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

Dr. Michael Hlastala

You don’t have to be sick to have a higher body temperature. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this — and the effects on breath test results. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.



Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.
Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.

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Funny Arrest Story – Bad News and Worse News

Years ago a prospective client was explaining his night out on the town with buddies. It was a typical story provided by a vast majority of those arrested for DUI. For purposes of this post we will refer to my client as Mr. X.

Mr. X informed me he was out after work hitting up various bars in downtown Seattle. Mr. X and his friends drank until 1:00 am and then proceeded to drive home. Mr. X decided to drive because his friend was “really wasted” and he only had a “couple” of drinks throughout the night. Mr. X mentioned he did the field sobriety tests without error and then was arrested for DUI. His breath test reading was above 0.15 which was bad news since Washington’s legal limit is 0.08.
During the discovery process we received a video tape of the arrest from the Washington State Patrol. Video in most cases ends up becoming a win-win situation for defense attorneys. Clients will watch the video and one of two conclusions are made: 1. Oh God I was really drunk or 2. See I really was sober. The clients that believed they were sober clearly see how smashed they were. Also, the video can point out how aggressive and blind a police officer can be.
For example, I watched one video of a defendant driving perfectly straight within their lane. There was absolutely no weaving within the lane or travel outside of his lane. On the video you can hear the officer stating, “See the weaving. Oh he almost hit the curb!” In court the prosecutor and judge disagreed with the officer’s assessment and the case quickly went away. Mr. X wished
his video could have worked the same magic.

The WSP Trooper was incredibly professional, polite and quite nice. He was not the brute type that is common amongst those in blue during an arrest. Mr. X could hear his slurred speech, and watched as he performed poorly on the field sobriety tests. After the tests the officer placed Mr. X into the patrol car and swiveled the camera around so it captured the backseat and my handcuffed client.
The trooper then went to inventory my client’s car and to speak with the passenger. While this is going on my client’s nose begins to itch badly. Since his hands were cuffed behind him he had to get resourceful. He smashed his face against the protective glass that separates the front of the patrol car with the backseat. Then he rubbed his nose downward leaving an obvious nasty yellowy smear of snot across the glass. Just as he finished the cop came back to the squad car.
Luckily the trooper did not notice the snot artwork, but did have some bad news. This is how the conversation went:

Trooper: Well I have some bad news and some worse news.
Client: Okay. What is the bad news?
Trooper: Your friend puked in your car. (Said with a smile)
Client: Oh no! Damn really? Oh that sucks.
Trooper: Yea. (laughing) It is everywhere. Dashboard, floor, seats and door.
Client: Son of a bitch. What is the worse news?
A few second pause
Trooper: He pissed himself real bad.
Client: What?!
Trooper: Yea, and it soaked into your car seat.

While we watched the video I tried my best to keep from laughing and smiling. When that exchange past I paused the video and looked at my client. He said he could not remember that conversation, but told me the seat was ruined and had to be replaced. Surprisingly, he was good natured about the incident and laughed it off.
Although, the video clearly proved he was under the influence the prosecution offered a nice settlement to a reduced charge. They never admitted it, but I think they felt my client suffered enough that night at the hands of his friend.

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California Man Charged With Manslaughter in DUI Crash

Anthony Guarino, 57, of San Diego, California, will stand trial on felony charges of gross vehicular manslaughter while intoxicated, DUI and other charges, following a deadly crash that killed an area father.
According to an article from 10 News, Marc William Durham was killed in the crash of August 20, 2010. He was a father of five who was driving his family to the movies when they were rear-ended by Guarino’s BMW as they pulled up to a red light.
Durham, a former security chief for General Dynamics, had retired just one week before he was killed in the accident. Other members of his family were in the car at the time of the DUI crash, though they escaped with injuries, saying that their father got the worst of it.
Guarino was allegedly drunk at the wheel of his BMW, and he will stand trial on the felony DUI charges after admitting to police that he had been drinking whiskey at a bar before he took to the roads that night.

The accident happened at about 9 p.m. The accident investigator in the case told the court that Guarino was traveling between 50 and 60 miles per hour in the BMW when it hit the Toyota Corolla owned by Durham.
When Guarino rear-ended the car, it started a chain reaction of collisions, and ultimately four other vehicles were involved, with additional injuries to passengers in those vehicles, including an 8-year-old boy.
Guarino told police that he had consumed around five Jack Daniels before he headed home from the bar. He admitted to police also that his driving was affected by how much alcohol he drank, but, according to the article, “he didn’t know how.”
Officers at the scene determined based on their judgment and observation that Guarino was intoxicated. When his blood alcohol content was measured several hours later, he registered a BAC of .15 percent, which is well over the .08 legal limit for driving while intoxicated. And it is likely, according to the claim of Deputy District Attorney Chandelle Konstanzer in court, that it was much higher at the time of the accident.
The defense for Guarino made the argument that his client was not guilty of gross negligence, and that a sleep apnea condition may have contributed to Guarino passing out while at the wheel.
The trial is set for early December, and Guarino is free on $100,000 bail, but he is not allowed to drink alcohol or drive.

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The March Toward .05%

As I’ve explained in past posts, the original legal limit for drunk driving was set in 1938:  0.15%.  This was based upon studies and recommendations from the American Medical Association.  Many years later, this was lowered to .10% and finally, after intensive lobbying by Mothers Against Drunk Driving, to 0.08%.  See DUI, MADD and the "New Prohibition".
MADD’s agenda is to get it lowered further — to .05%.  The eventual goal is .00% — conviction for drunk driving if there is even a trace of alcohol in the system, regardless of the absence of any indication of impairment.  (Note: MADD has already been successful in achieving .01% "zero tolerance" laws nationwide for drivers under 21.) This bears out the reasons why MADD’s original president, Candy Lightner, resigned from the organization she founded, saying it had become essentially prohibitionist rather than dedicated to saving lives.
In today’s news, the latest in MADD’s strategy:

Austin Chief Pushes for New Drunk Driving Charge
Austin, TX.  Oct. 7 — A campaign to create a new category of driving while intoxicated is being promoted at the Capitol as one way to curb growing problems in Texas’ system of punishing drunken drivers.
Austin Police Chief Art Acevedo, among the supporters of the change, said the idea behind a new offense of “driving while ability impaired” — DWAI — would cover drivers whose blood-alcohol content is between 0.05 and 0.07.
That would be less than the 0.08 level required before police can charge a motorist with drunken driving…
Acevedo…noted that one person may drive dangerously at the 0.08 level — the nationally accepted standard for being drunk — while others “may be at 0.05 or 0.06. It depends on the person.”
“People sometimes focus on how many drinks they can have before they’ll go to jail,” Acevedo said. “It varies. … A person may be intoxicated at 0.05, and you don’t want them out driving.”
In his written testimony (to the Senate Criminal Justice Committee), Acevedo said he thinks the changes would make it easier to process and convict drunken drivers “as well as preventing others from making that initial mistake to drink and drive.”
Bill Lewis, the legislative director for Mothers Against Drunk Driving, which has led the charge in recent years to toughen Texas DWI laws, said the group has not reviewed or endorsed the proposed new charge of DWAI. He added, “I don’t see how it would hurt.”

Hmmm... Some people will be intoxicated at .08%, but "others may be at 0.05%".   May
be?  So everyone with .05% is convicted and punished for drunk driving — because some of them might be intoxicated?
MADD marches on...
(Thanks to Murphy Mack.)

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